Retailers left in limbo after rush to curb use of synthetic drugs

Madeleine Kearney

'Where these substances have been banned in the past, manufacturers have altered the molecular structures of their products to create a different chemical entity to evade regulatory controls'. Photo: Jeffrey Chan

As the NSW government grapples with how to stem street violence, it is clear legislation aimed at blocking the flow of synthetic drugs has deep-seated flaws.

The Wikipedia entry for whipped cream chargers recently began: ''A whipped cream charger (also called whippits, whippets, nossies, or nangs) is a steel cylinder or cartridge filled with nitrous oxide that is used as a whipping agent in a whipped cream dispenser. The nitrous oxide in whipped cream chargers is also used by recreational drug users as an inhalant for its psychoactive effects.''

A simple statement of fact about something that is common knowledge. But under laws introduced in NSW, repeating that statement could put me in jail for two years.

The sale of cream bulbs is also illegal. Well, it might be, depending on whether the person selling them knows that the buyer intends to inhale the contents or is reckless regarding the purchaser's intent. So it should be OK to sell them to Great-Aunt Ethel when stocking up on her baking supplies but perhaps not to a group of 17-year-olds on a Friday night on their way to a party. Unless, of course, it is a MasterChef party.

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Why is this so? In response to concerns regarding new and emerging synthetic drugs, often marketed as ''legal highs'', the NSW government has banned the manufacture, supply and advertising of all ''psychoactive substances'', subject to exemptions for categories of substances that have legitimate and legal uses, including substances regulated as poisons and drugs under other legislation, therapeutic goods, food, alcohol, tobacco, herbal extracts and substances supplied by healthcare practitioners. This reverses the previous regulatory approach whereby substances were individually prohibited based on an assessment of their risk of harm.

There is no doubt synthetic substances that are intended to mimic the effects of drugs such as cannabis and ecstasy are a significant challenge for law enforcement agencies. Where these substances have been banned in the past, manufacturers have altered the molecular structures of their products to create a different chemical entity to evade regulatory controls. Several people have died after consuming these substances. But that doesn't change the fact that the reforms are bad law.

The definition of ''psychoactive substance'' is intentionally broad, capturing any substance that affects the central nervous system and will result in a significant change in mood when consumed and could cause a state of dependence. Even sugar should fall within the definition. The act attempts to deal with this problem in two ways - first, by exempting a wide range of goods and, second, by including provision for an element of knowledge or recklessness regarding whether the substance will be consumed by a person.

Despite this, it is clear that a number of products have been inadvertently captured. Cream bulbs are one. Perhaps more surprisingly, aerosols also seem to have been caught. This is because these products do not fall within any of the categories of exemptions and the potential for abuse of these products is well known (so it is possible that, at least in some circumstances, a retailer will be reckless regarding the purchaser's intent to consume the product). No doubt there are more.

The legislation provides for exemptions to be available for substances captured inadvertently but this ignores the uncertainty created by the act and the difficulties faced in determining whether a product is exempt or not, which requires a good working knowledge of poisons and therapeutic goods legislation.

A degree of ambiguity may be inevitable and may be the price that must be paid to have effective drug laws. Police can use their discretion in enforcing the laws, which is better than having drug manufacturers taking advantage. However, this argument only carries weight if the law is effective in achieving its intended purpose and, in that regard, the act does not apply to drugs that are imported under the personal use exemption contained in the Therapeutic Goods Act and so will have no impact on sales of relatively small quantities of these products from offshore internet sites.

Another problem is that something can be an advertisement even when the person does not have any commercial interest in the supply of these substances - all that is necessary is that they be reckless regarding whether the material ''promotes, directly or indirectly, the consumption, supply or sale of a substance for its psychoactive effect'' and provides information on how the substance can be acquired. This could include educational material such as on Wikipedia.

This is not an argument against reform but it does illustrate why reform of this magnitude should not have been rushed. Manufacturers and retailers need certainty regarding whether the products they supply are legal or not.

Madeleine Kearney is a special counsel on product risk at Gadens Lawyers.